Dosoruth v State of Mauritius
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 21 October 2004 |
| Neutral Citation | [2004] UKPC 51 |
| Date | 21 October 2004 |
| Docket Number | Appeal No. 49 of 2003 |
| Court | Privy Council |
[2004] UKPC 51
Privy Council
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Brown of Eaton-under-Heywood
Sir Andrew Leggatt
[Delivered by Lord Hope of Craighead]
At the time of the events which gave rise to this case the appellant was employed as a senior works inspector by a District Council in Mauritius. On 30 September 1995 he was found guilty by the Intermediate Court of Mauritius of having wilfully and unlawfully received a reward for an act in the exercise of a function as an agent of a public department which was not liable to remuneration, contrary to section 126 of the Criminal Code. He was sentenced to twelve months imprisonment with hard labour and fined Rs10,000. He appealed against this judgment to the Supreme Court of Mauritius. This was in the exercise of his right of appeal under section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act. On 16 June 1997 the Supreme Court (Lam Shang Leen and Balgobin JJ) dismissed his appeal. He did not seek leave to appeal to the Judicial Committee of the Privy Council against the judgment of the appellate court.
On 3 July 1997 the appellant commenced proceedings by plaint with summons in the Supreme Court in which he sought constitutional redress under section 17 of the Constitution of Mauritius. He was represented in these proceedings by Mr Ollivry QC, who did not appear for him either at the trial or at the hearing in the appellate court. Mr Ollivry asked the Supreme Court to declare that a miscarriage of justice had occurred and to order a new trial of the case by the Intermediate Court or to revise the proceedings itself in the light of the facts averred by him in his application. On 30 June 1999 the Supreme Court (Matadeen and Seetulsingh JJ) upheld the respondents' objection to these proceedings and set aside the plaint. On 19 June 2000 the appellant was granted leave to appeal to the Judicial Committee under section 81(1)(c) of the Constitution. Execution of the judgment of the trial court was stayed pending the decision of the Judicial Committee on the appeal. The appellant now seeks an order from the Board remitting his case to the Supreme Court for a further hearing of his appeal.
The facts
The case against the appellant at his trial was that he had received the sum of Rs5,000 from Mrs Marie Anic Rosy Khedoo as a bribe in connection with her application for a development permit. There was undisputed evidence that it was part of the functions of a senior works inspector to report to the District Council's engineer on every such application. Mrs Khedoo had applied for a development permit in September 1991. Thereafter, in accordance with the normal procedure, the views of various authorities were sought. By December 1991 all the relevant reports had been received from these authorities. They were favourable to the proposed development. But a favourable report from the engineer was still needed before the appellant could prepare the permit for the development. It then had to be signed by the Secretary of the District Council before it was issued. The practice was for the engineer to rely on the senior works inspector's site report when making his recommendation. This was a function for which the senior works inspector was not entitled to any remuneration by the applicant. But it was a function for which, according to Mrs Khedoo, the appellant had sought and been paid a reward by her for his services.
In his application to the Supreme Court the appellant gave the following brief account of the evidence which was led against him as it appeared from the record in the trial court. Mrs Khedoo, who was the complainant, gave evidence. She said that the alleged bribe was paid by means of a cheque for Rs5,000 drawn cash on 21 December 1991. She remitted the cheque to the appellant in return for the delivery to her of the development permit at the District Council's office that afternoon. A bank official Mr Armand Lecordier gave evidence that Mrs Khedoo's cheque for Rs5,000 was encashed at the main branch of the State Commercial Bank in Port Louis on 21 December 1991. The development permit was delivered to Mrs Khedoo by a clerical officer of the District Council. The appellant then averred that this incident could not have happened as alleged by these witnesses, as 21 December 1991 was a Saturday and it is a notorious fact that the Bank and the offices of the District Council are not open on Saturday afternoons.
It was not suggested to Mrs Khedoo at the trial that the incident which she described could not have happened on the afternoon of 21 December 1991 as both the District Council's office and the Bank to which the cheque was taken for encashment were closed. Nor was this point mentioned in any of the twenty six grounds on which the appellant appealed against his conviction to the appellate court. The appellant explained that it was not until after his grounds of appeal had been filed that it was realised that 21 December 1991 was a Saturday and it was appreciated that it would have been impossible for him to have presented the cheque for payment or cause it to be so presented before the Bank closed on that day if it was not until the afternoon of that day that the cheque was handed to him by Mrs Khedoo.
The appellant's counsel sought to raise this point during the hearing of the appeal by the appellate court. He submitted that it was notorious and within judicial knowledge that the Bank and the District Council's offices were not open on Saturday afternoons. But counsel for the respondents took objection to this submission, of which there was no notice in the grounds of appeal. The objection was upheld, and the appellant's counsel was prevented from developing the point as part of his argument. There is no mention of it in the judgment which the appellate court delivered on 16 June 1997.
The appellant claimed that in these circumstances he was denied a fair hearing of his appeal against his conviction by the appellate court. He sought redress under sections 1 and 3 of the Constitution on the ground that he was denied the protection of the law. He maintained that he had no statutory means of establishing that he had been the victim of a miscarriage of justice. This was because, on his interpretation of the relevant legislation, the appellate court did not have power to order a new trial or to re-open a criminal case which had already been adjudicated upon by the Intermediate Court. For the respondents it was submitted that, ex facie of the appellant's own averments, there had been no breach of his constitutional right and that in any event there were adequate means of redress available to him.
The legislation
Section 1 of the Constitution provides that Mauritius shall be a sovereign democratic State to be known as the Republic of Mauritius. By section 3 it is recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination each and all of the human rights and fundamental freedoms which it sets out, including
"(a) the right of the individual to life, liberty, security of the person and the protection of the law."
Section 10(1) provides:
"Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
Section 17 provides, in subsections (1) and (2):
"(1) Where any person alleges that any of sections 3 to 16 has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of sections 3 to 16 to the protection of which the person concerned in entitled…."
Section 82(1) provides:
"The Supreme Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court."
Section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 provides that where any person is charged with an offence before a Magistrate or before the Intermediate Court an appeal shall lie to the Supreme Court against any final decision of that court by the person charged against his conviction or sentence. Section 96(1) provides:
"On hearing an appeal, no new evidence shall be admitted, and the information, depositions and other evidence and conviction before the Intermediate or District Court shall be revised by the Supreme Court."
Section 96(5) provides:
"Where, on an appeal under section 92, the Supreme Court is of opinion that a serious irregularity has occurred, it may declare the trial to be a nullity and order a fresh hearing."
The judgment of the Supreme Court
It is plain from the judgment which the Supreme Court delivered in the proceedings for constitutional redress on 30 June 1999 that it was not persuaded that there was any substance in the appellant's complaint. The Court rejected the argument that there had been a breach of section 1 of the Constitution, on the ground that all the rights and freedoms which are guaranteed to an accused person...
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